On December 9, 2020 the SCOTSI handed down its unanimous ruling taking away the new (criminal) trial that had been granted by the COA. The CLB “guaranteed” in late February of this year a Transfer Petition following the split (2/1) COA decision to order a new trial for convicted murderer Clinton Loehrlein upon evidence that a juror (who was also a lawyer) had lied in written responses on her juror questionnaire. The questions in issue asked about the prospective juror’s history of criminal charges and of being a crime victim. The juror’s deceit covered up her record of having been formally charged with the offense of domestic battery and her (alleged) experience as a victim of domestic battery. See Loehrlein v. State, 142 N.E.3d 966 (Ind. Ct. App. 2020). There was evidence from the defense jury consultant that she would have recommended a peremptory strike of the prospective juror had there been truthful responses on the juror questionnaire.
The juror’s deceit was discovered post-verdict and after the jury had rejected Clinton Loehrlein’s claim of insanity when he murdered his wife and attempted to murder his two daughters. Notably, the circumstances of the charged offenses were domestic violence (as the deceitful juror had experienced) taken to the extreme.
To its credit, the SCOTSI agreed with the trial court and COA that there was “gross” juror misconduct. Here is a quote from the SCOTSI Opinion:
“Generally proof that a juror . . . lied during voir dire entitles a defendant to a new trial.” State v. Dye, 784 N.E.2d 469, 473 (Ind. 2003)
The problem is that the quoted legal standard is contrary to reality. To say that the remedy of a new trial “generally” follows proof of a juror’s lies suggests a presumption (albeit rebuttable) that the selection of a lying juror carries with it reversible harm in the form of deprivation of a fair trial. Instead of the benefit of a presumption of harm from gross juror misconduct he who seeks a new trial bears the additional burden of proof that the gross misconduct “probably harmed” him. For the defendant below the harm was two-fold: a liar became a juror; and the same liar would have been excused (by way of peremptory challenge) but for her lies. Expressed just a bit differently, the second aspect of harm is that the unexposed lies from a prospective juror deprive a party of the intelligent use of the peremptory challenges allocated to him.
The SCOTSI declared that harm to Loehrlein from the juror questionnaire lies was “unlikely.” The issue at trial was not whether Loehrlein committed the actus reus of murder and attempted murder but whether he was insane when doing so. Since insanity was not an issue in the domestic violence history about which the juror lied, the SCOTSI reasoned that the (probable) impact of her lies was lessened. The SCOTSI conclusion of “no probable harm” was aided by (improperly) weighing the conflicting sanity evidence and also (incredibly) giving weight to the post-conviction testimony of the lying juror that she had been fair and impartial in the jury room.¹
If somehow obliged to argue in favor of the SCOTSI holding, the CLB would note that the SCOTSI (merely) affirmed the trial court “finding” of no probable harm to the defendant. But what is “harm” in this context? It should not be necessary for the defendant to prove a probable acquittal but for the lying juror. It should be a sufficient showing of harm that the jury was contaminated by a liar and that the defense was deprived of the intelligent use of its peremptory challenges. “Harm” means or should mean some appreciable detriment, as took place herein. When a trial court finding involves a matter of law (such as the meaning of “harm”) no appellate deference is due.
In the appellate opinions the lying lady lawyer juror was identified only as “L.W.” I tried unsuccessfully to parlay the initials and other (sparse) identifying details into a name. Whoever “L.W.” is, I look forward to word of disciplinary action against her.
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¹ It is interesting that the SCOTSI Opinion made no mention of the circumstance that L.W. became “foreperson” of the jury. It seems that any taint attached to a juror is likely enhanced by such circumstance.
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